The legislative process to revise the PSD2 has reached its next stage: the Council published its stance on the draft legislation. The latest draft amendment introduces, among others, new exemptions for payment services, strengthens fraud prevention measures, clarifies the interplay between MiCAR and PSR and enhances the provisions for Account Information Services and Payment Initiation Services.
In June 2023, the European Commission ("EC") published proposals for the amendment of the revised Payment Services Directive (Directive (EU) 2015/2366 – "PSD2"). As part of the proposals, PSD2 will be updated to PSD3, and PSD3 is supplemented with a Payment Service Regulation ("PSR"). The European Parliament ("EP") adopted the proposals from the EC in April 2024, with certain proposed amendments ("Parliament Draft Amendment"). On 18 June 2025, the Council of the European Union ("Council") has published its stance ("Council Stance" or "PSR-D") on the Parliament Draft Amendment to the PSR (see our summary here) and PSD3 (see our summary here).
In this article, we assess the changes resulting from the Council Stance to the PSR. In a separate article, we will comment on the changes resulting from the Council Stance to the PSD3.
What is new in the Council Stance?
Scope and exemptions
The Council Stance amends the exemption from the scope of application of the PSR with regard to e-money tokens, among other things. While transactions with e-money tokens were generally excluded from the scope of the PSR under the Parliament Draft Amendment, the exemption provision pursuant to Art. 2 para. 2 lit. a1), l1) PSR-D shall now only apply to certain transactions with e-money tokens, namely to payment transactions with e-money tokens without any intermediary involved, including transfers of e-money tokens between two self-hosted addresses and payment transactions carried out between crypto-asset service providers or their branches for their own account.
In addition, according to Art. 2 para. 2 lit. h1) PSR-D, the PSR shall further not apply to the exchange by crypto-asset service providers of electronic money tokens for funds or crypto-assets, where the crypto-asset service provider is acting in its own name as buyer or seller of those e-money tokens. This is justified in the recitals by stating that these e-money tokens are used for investment or trading activities.
While it was not entirely clear in the Parliament Draft Amendment whether the legislator also intends to cover payments from or into the group which, according to certain competent authorities (in particular the German Federal Financial Supervisory Authority's (Bundesanstalt für Finanzdienstleistungsaufsicht – "BaFin") current administrative practice), do not fall under the exemption provision of section 2 para. 1 no. 13 ZAG, the Council Stance now clarifies that the collection of funds from external third parties on behalf of group entities by a parent undertaking or its subsidiary are covered by the exemption in Art. 2 para. 2 lit. m) PSR-D.
The Council Stance further reduces the limits of payment transactions for providers of electronic communications networks or services provided in addition to electronic communications services (Art. 2 para. 2 lit. k) PSR-D). The limit for single payment transactions is reduced from EUR 60 to EUR 50 and the cumulative value is reduced from EUR 360 to EUR 300 per month.
Under Art. 2 para. 2 lit. b) PSR-D, the commercial agent exemption no longer refers to the commercial agent definition under the Directive 86/653/EEC ("Commercial Agent Directive"). Thus, the commercial agent exemption applies under the conditions set out in PSR-D without referring to other laws or regulation.
Liability / strengthening fraud prevention
Fraud
The Council Stance introduces further measures for fraud prevention as it establishes comprehensive obligations for payment service providers to prevent and detect fraudulent payment transactions. In particular, the Council Stance contains an extensive description on fraud monitoring obligations of payment services providers which must be adopted into their processes.
Art. 59, 69 para. 2a, 83, 83a, and 83b PSR-D outline the requirements for transaction monitoring mechanisms, fraud data sharing, and the establishment of a platform for combating fraud.
These measures aim to enhance the security of payment transactions and protect consumers from fraud.
According to Recital 69e PSR-D, a payment service provider shall not be liable if the execution of a payment order was justifiably delayed. However, beyond the recitals, this new inserted statement is not explicitly reflected in Art. 59 PSR-D, which is relevant for liability, but should be relevant for the interpretation of liability provisions.
Spoofing – service providers under DSA and electronic communications services providers
While the Parliament Draft Amendment had set out extensive compliance and liability provision for payment service providers, service providers under the DSA (e.g. online platforms) and electronic communications service providers (see details here), the Council Stance has significantly reduced such obligations.
First, online platforms are no longer covered by the requirements of Art. 59 PSR-D, as Art. 2 para. 9a of the Parliament Draft Amendment is deleted in the Council Stance. Competent authorities only retain competence to require information from providers of intermediary services under the DSA (Art. 91 para. 3 lit. (a)(iv)(a) PSR-D).
Electronic communications service providers shall now establish dedicated communication channels with payment service providers to allow for faster and more effective sharing of any information to prevent fraud. In contrast to the Parliament Draft Amendment, the Council Stance has removed the refund obligation of electronic communications service providers and online platforms against payment service providers if they do not remove fraudulent or illegal content after being informed by the payment service provider of this occurrence. However, the Council Stance now provides to draw up a voluntary code of conduct at Union level to combat payment fraud and financial scam (Art. 59, 59a para. 2, 83b para. 2 lit. b) PSR-D).
Interplay with DMA
The Council Stance also provides for a significant change regarding access to devices. Art. 88a of the Parliament Draft Amendment had provided for access rights vis-à-vis original equipment manufacturers of mobile devices and providers of electronic communications services (see our German article on this topic here). This provision has now been deleted from the Council Stance.
Gross negligence
With regard to gross negligence of the payment service user, a Recital expands the characteristics that should be taken into account when assessing gross negligence. These include, for example innovativeness and complexity of the fraud, and whether the payment service user has previously fallen victim of the same type of fraud or any known characteristics of the payment service user that might mage the user more likely to fall victim to fraud. Although the Council Stance clarifies that the list of characteristics is not binding and does not prejudice the discretion of national or EU courts and/or dispute resolution bodies it is likely that such consideration will have an impact on the interpretation of the term by courts.
Interplay MiCAR – PSR
The Council Stance addresses the interplay between the PSR und MiCAR in several places and significantly expands the Parliament Draft Amendment in this respect. Whereas the Parliament Draft Amendment had excluded transactions with e-money tokens from the scope of application, the Council Stance now expressly includes certain types of transactions in the scope. E-money tokens are expressly included in the definition of funds (Art. 3 para. 30 PSR-D) and, in consequence, the transfer of e-money token will generally constitute a payment transaction and a payment service. Therefore, basically all provisions of PSR-D will apply to e-money tokens safe for certain exceptions set out in the Council Stance:
Under Art. 67a para. 1 PSR-D, payment service providers are obliged to provide information regarding the maximum execution time and charges for payment transactions with e-money tokens only by way of a reasoned estimation, if they are not able to provide specific information.
Account servicing payment service providers ("ASPSP") regarding AIS and PIS are not required to fulfil the requirements of Art. 40 and 41 PSR-D as regards payment transactions with e-money tokens (Art. 67a para. 2 PSR-D). Thus, e-money tokens are not subject to open banking provisions.
Under Art. 67a para. 3 PSR-D, payment service providers are not subject to the obligations of identifying the payment account of the payee and limits and blocking of payments with respect to payment transactions with e-money tokens.
In accordance with Art. 70 PSR-D, in case of payment transactions with e-money tokens from a custodial wallet to a self-hosted address, the payment service provider of the payer shall generally transfer the funds to the self-hosted address of the payee by the end of the business day following receipt of the instruction by the payer.
Finally, Art. 110b PSR-D will amend Art. 60 MiCAR so that a payment institution may provide crypto-asset services with e-money tokens, provided that these services are considered equivalent to the payment services for which the payment institution is authorised under PSD3. This provision shall exclude the requirement of the application for two separate authorizations under MiCAR and PSR for the provision of payment transactions with e-money token: If a payment institution has a license for payment services under PSD3, it does not need to apply for a license under MiCAR for crypto-asset services if they are equivalent to payment services for which the license under PSD3 has been granted. This provision might cover crypto-asset services in the form of transfer services on behalf of clients if the PSD3 license includes payment services other than issuance of e-money or the exchange of crypto-assets for funds if the PSD3 license includes the issuance of e-money.
Fees
The Council Stance amends the regulations on the transparency fees in certain areas compared to the Parliament Draft Amendment.
AIS and PIS
The Council Stance amends and specifies the provisions for AIS and PIS the requirements for ASPSPs. Planned unavailability of the dedicated interface e.g. in case of maintenance shall be conducted between 0:00 and 6:00 in the night. In case of unplanned unavailability of the dedicated interface, the ASPSP shall inform the AIS and PIS about measures and timing to solve the problem. In addition, it is expressly stipulated that the performance of the dedicated interface shall at least be equivalent to the user interface. In line with future RTS, ASPSPs shall publish statistics about the availability of their interfaces and publish such statistics. National central banks may under national law be exempt from providing a dedicated interface. Furthermore, ASPSPs are no longer required to confirm the execution of payments within 30 seconds of authorisation.
Apart from that the recitals include some interpretations about the characteristics of open banking services. It is clarified that the AIS could also transmit the payment account data obtained to a third party who in turn would provide a service to the payment service user leveraging on that data. Thus, it seems, that – e.g. in line with the interpretation of BaFin – the access to the account, but not the receipt of account information triggers the license requirement of an AIS. In addition, the recitals explicitly point out that the service recipient of the PIS may also be the payee, which is also the position of certain national competent authorities.
Supervisory powers
The Council Stance sets out in a very descriptive and more detailed manner than is usual what supervisory powers the competent authorities should have (Art. 25 PSR-D).
Next steps in the legislative process
The member states' representatives have approved the Council Stance for the PSR-D (and PSD3-D) on 18 June 2025. Next, the presidency and the European Parliament will start negotiations on a final text.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
